The Army has launched a crackdown on the drug spice at least nine commands in response to a spike in usage among soldiers. A designer drug that mimics marijuana, spice is legal in most states, and is available for sale in smoke shops and online for around $50 for three ounces. What’s more, spice is undetectable by most urinalyses. The Army is also keeping a watchful eye on another noncontrolled substance called salvia, which is a hallucinogen.

Spice has been outlawed in 13 states, including Georgia, Kentucky, Tennessee and, as of July, Hawaii, according to the National Conference on State Legislatures. Several variants of spice are illegal in Germany and some other European nations.

In the Army, use of noncontrolled intoxicants, including natural substances, is prohibited under Army Regulation 600-85, which governs the service’s substance abuse program. Punishments can arise under Article 92, UCMJ, for an orders violation.

WND reports that:

The filing of charges may, however, be part of the still-unrevealed strategy Lakin and his legal counselors are pursuing.

Not sure what “strategy” there is in making sure your client announces he will commit an offense, commits an offense and announces it in writing, video, and radio, and forces or encourages the Army to prefer charges. IMHO I always thought a defense strategy was different.

Graphic from www.safeguardourconstitution.com

In order to prove LTC Lakin guily of the charged offenses the government must prove, beyond reasonable doubt the following:

Article 87, UCMJ: (Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.)

c. ELEMENTS: (1) That the accused was required in the course of duty to move with (state the ship, aircraft, or unit alleged); ( 2 ) That the accused knew of the prospective movement of the (aircraft) (unit) (ship); (3) That (state the time and place alleged ), the accused missed the movement of the (aircraft) (unit) (ship); and (4) That the accused missed the movement through (design) (neglect).

Article 92, UCMJ: (Any person subject to this chapter who– (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order[.])

ELEMENTS: (1) That there was in existence a certain lawful (order) (regulation) in the following terms: (state the date and specific source of the alleged order or regulation and quote the order or regulation or the specific portion thereof); (2) That the accused had knowledge of the (order) (regulation); (3) That the accused had a duty to obey such (order) (regulation); and (4) That (state the time and place alleged ), the accused failed to obey this lawful (order) (regulation) by (state the manner alleged ). NOTE 2: Order or regulation determined to be lawful . When it is clear as a matter of law that the order or regulation was lawful, the military judge should resolve this as an interlocutory question and the members should be advised as follows: As a matter of law, the (order) (regulation) in this case, as described in the specification, if in fact there was such (an order) (a regulation), was a lawful (order) (regulation).

The lawfulness of an order:

lawfulness of an order is not a discrete element under Article 92, the MJ decides lawfulness as an interlocutory question.

United States v. New, 55 M.J. 95 (C.A.A.F. 2001).

This case involves some of the most difficult choices that may confront our Government and our men and women in uniform. Faced with increasing instability in the Balkans, the United States had to decide whether to deploy U.S. troops in support of the peacekeeping effort in the former Yugoslavian Republic of Macedonia, how to structure command and control relationships with other national and international forces in the area, what types of orders were needed to implement those relationships, and how to dispose of alleged violations of such orders. Appellant had to decide whether he should voice his opposition to those decisions, how to do so, and whether to obey orders that he viewed as unlawful. Appellant chose to manifest his opposition through disobedience of an order from his commander, and he challenged the legality of that order at his court-martial. He now asks this Court to create an exception to the requirement that the military judge decides questions of law where, as in this case, appellant claims the question of law is an element of the alleged offense. This Court reviews the question of whether the military judge correctly determined that the issue was a question of law on a de novo standard of review. For the reasons set forth below, we hold that lawfulness of an order, although an important issue, is not a discrete element of an offense under Article 92. We further hold that, in this case, the military judge properly decided the issue of lawfulness as a question of law. See Art. 51(b), UCMJ, 10 USC § 851(b). Orders are clothed with an inference of lawfulness. See Hughey, 46 MJ at 154; United States v. Nieves, 44 MJ 96, 98 (1996). “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” Para. 14c(2)(a)(i), Part IV, Manual, supra (1995 ed.). Appellant has the burden to establish that the order is not lawful. Hughey, 46 MJ at 154; United States v. Smith, 21 USCMA 231, 234, 45 CMR 5, 8 (1972). This Court has held that an Air Force Captain disobeyed a lawful order when he refused to fly as a training instructor on a fighter plane that was used in Vietnam. United States v. Noyd, 18 USCMA 483, 485-86, 40 CMR 195, 197-98 (1969). The Noyd court noted that “[m]ilitary service is . . . a matter of status,” like becoming a parent, rather than just a contractual relationship and that status establishes special duties between the soldier and the Government. 18 USCMA at 490, 40 CMR at 202. It further noted that “the fact that a person in a military status determines that he has undergone a change of conscience does not, at that instant and from that time on, endow him with the right to decide what orders are compatible with his conscience.” 18 USCMA at 491, 49 CMR at 203.

And, is the issue raised by LTC Lakin actually a political question that the military courts must decline to rule on. Further reading of New may be appropriate.

The website posits that:

A vigorous defense of this case presents the ONLY present hope that Americans will finally learn whether their president lawfully holds office. In facing court-martial, LTC Lakin is just the latest victim of the determined effort of the President not to provide simple proof of his eligibility under the constitution to hold office.

The website also posits that:

The first is “Missing Movement” a serious crime in the nature of a felony for failing to deploy to Afghanistan.

I disagree that conviction on any of these offenses is actually a felony conviction. Yes, it would be a federal conviction. These are purely military offenses as charged. Based on my experience and research over the years they would not qualify as a felony in any state.

The second is disobeying a direct order, and there are four specifications (separate instances) of this charge. Any soldier convicted on all charges and specifications would expect to be sentenced to years at “hard labor” in the penitentiary.

And of all things CDR Walter Fitzpatrick III (Lt. Commander USN (Ret.) has resurfaced. You may find him at JAGHunter.

Here is an item at wizbang.

There is nothing inherently illegal about the orders issued to Dr. Lakin. They were not issued directly by President Obama, but by Dr. Lakin’s chain of command. Further, as far as the military is concerned, the issue of Obama’s eligibility is a closed matter. Quite frankly, it’s not up to the president to prove to the military that he is qualified to be their Commander In Chief. We have civilian control of the military, and that means that the civilian governing structures decide who controls the military — not the military itself. And Obama was certified as the president by Congress, the Supreme Court, and the Electoral College when they confirmed him in office.

On a separate but related point, here is a piece from MCB Camp Pendleton:

The Marine Corps’ motto is Semper Fidelis (Always Faithful), and Marines understand that unwavering loyalty, up and down the chain of command, is crucial for keeping good order and discipline. That loyalty is sometimes tested by individual Marines when decisions made by political leaders conflicts with their personal political preferences. Department of Defense Directive 1344.10, a punitive general order, exclusively conveys guidelines for participation in political activities.

His Greeley relatives are putting distance between themselves and his birther campaign. Lakin’s father Frank told the Greeley Tribune Friday that his son’s video wasn’t representative of the family. “This does not reflect the opinions or the attitude of the family by any means,” he said. “We’re Obama supporters.”

A posting at Buzzflash.com asserts that LTC Lakin is also a member of the Tea Party.

A comment from LtCol Christopher Matthews, USAF (Ret.) on CAAFLog

[M]ilitary appellate courts adopted the de facto officer doctrine long ago — see, e.g., United States v. Jette, 25 M.J. 16 (C.M.A. 1987); United States v. Watson, 37 M.J. 166, 168 (C.M.A. 1993); and United States v. Brown, 39 M.J. 114 (C.M.A. 1994). CAAF not long ago denied petitions on a pair of Air Force cases where we upheld convictions by courts-martial convened by an officer ineligible to assume command as the GCMCA, so I believe the law on this point to be unchanged.

An article at Huffington Post posits that the ultra conservatives are “taking advantage” of military people such as LTC Lakin, as part of an all out assault on the military – a strange position for the far right who once accused those who didn’t support the wars in Iraq and Afghanistan as being traitors.

Why put this man’s career in jeopardy over a lie? For the same reason Glenn Beck is taking advantage of the Special Operations Warrior Foundation to pay for a hate filled rally or Sean Hannity is scamming wounded warriors and their kids.

(There have been a number of reports about the extravagant expenditures of Sean Hannity that are charged off to the charity. I believe the Salvation Army has an overhead of about 4%, the rest of their donations going to the charity work.)

The Colorado Independent reports that:

Terry Lakin, the Army Doctor who has refused orders to deploy to Afghanistan, hasposted online the letter he wrote to Pres. Obama last week explaining his decision.

If he is correct, then all orders are illegal since President Obama was sworn in? Thus an additional charge at his court-martial (in addition to Article 88, UCMJ, Article 92, UCMJ, for unlawful political activity) should include theft perhaps or wrongful receipt of government funds or some other wrongful taking – like his pay checks? Military personnel are routinely prosecuted for taking and keeping BAH they are knowingly not entitled to and failing to report the matter?

Query. If President Obama is not lawfully president, who is? Well is it not Vice-President Biden? There has been no issue raised that VP Biden is not lawfully elected. Either way, military orders, assuming they come from the president qua president, must come from VP Biden then. So LTC Lakin is getting lawful orders. See, we can all make silly arguments about this.

Here’s an interesting piece from the Guardian in the UK (a liberal paper):

Lakin’s outburst of birtherism should not be seen in isolation. Instead, it’s further evidence that rightwing hate, aided and abetted by leading Republicans, has gone mainstream. Remember when people, especially conservatives jumped on DHS for issuing a warning about extremism.

The first warning came a year ago, when the department of homeland security predicted a rise in rightwing extremism fuelled by economic calamity and the election of our first black president. News of the report, and especially about a warning contained therein that military veterans might be pulled into the movement, set off criticism among conservative bloggers. Yet it proved prescient.

The Army general commanding U.S. forces in northern Iraq has added pregnancy to the list of prohibitions for personnel under his command.

The policy, which went into effect Nov. 4, makes it possible to face punishment, including a court-martial and jail time, for becoming pregnant or impregnating a servicemember, according to the wording of the policy and confirmations from Army officials.

Stars & Stripes reports.

This may be a new and seemingly draconian policy for the Army. However, the type of policy envisioned isn’t new in my view. The policy doesn’t actually punish pregnancy it seems, what it prohibits and potentially punishes is a form of fraternization. The Navy has operated under policies prohibiting sexual relationships among crew-members of ships – of mixed gender crews, n.1. As the GCMCA has indicated, there is an adverse impact on units for deployed soldiers who become pregnant. On the surface this order borders on interference with personal behavior of the people involved and subject to challenge as unlawful. But the impact does seem reasonably related to an ongoing combat mission and only applies to personnel within the AOR during the time they are assigned to the AOR. It seems to me that military law does allow for such an order, but I would expect challenges.

To be lawful the order must relate to military duty – includes all acts reasonably necessary to accomplish a military mission, to safeguard or promote the morale, discipline, and usefulness of members of a command and which is directly connected with the maintenance of good order in the service. The order may not interfere with private rights or personal affairs. But conscience, religion, or personal philosophy cannot justify or excuse the disobedience of lawful order. See United States v. Hughey, 46 M.J. 152, 154 and n.2 (C.A.A.F. 1997).

In principal it is the defense burden to prove that an order is illegal unless the order is “palpably illegal on its face.” United States v. Kapla, 22 C.M.R. 825, 827 (A.F.B.R. 1956). Orders are thus clothed with an inference of lawfulness. See Hughey, 46 M.J. at 154; United States v. Nieves, 44 M.J. 96, 98 (C.A.A.F. 1996). “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The accused has the burden to establish that the order is not lawful. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).

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n.1: Caution — haven’t checked, there may be a case or two on the Navy policies.